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In Re Estate of Wallace - Genetic Testing to Determine Intestate Succession

The following article concerns a case brought before the Third Court of Appeals in Texas on August 28, 2013. This case was appealed from a decision of the Probate Court of Travis County. The cause of action arose from a disagreement surrounding the division of Ruby Greer Wallace's estate. Ruby had three children: Carole Ann Wallace, Dennis Arthur Wallace Jr., and William Edward Wallace. Ruby died intestate, as did William Edward. Furthermore, William Edward died without a determination of heirs. Barbara Wallace Hernandez, who claimed to be William Edward's daughter, applied for a declaration of heirship. Carole and Dennis Jr. contested Barbara's application. After a bench trial, the trial court held that Carole, Dennis Jr., and Barbara were each entitled to a one-third interest in the estate. Carole and Dennis Jr. appealed.

Carole and Dennis Jr. argued at the bench trial that Barbara was not actually William Edward's biological child. They moved for the trial court to order genetic testing under the authority of Texas Probate Code § 53A (which has since been recodified as § 204.051 of the Texas Estates Code). This section of the Code specifies that in a proceeding to declare heirship, the court shall, on the request of a party to the proceeding, order a specified individual to submit to genetic testing. The trial court granted their motion and ordered testing. William Edward's remains were exhumed and his bone samples were tested against DNA samples from Barbara. The DNA testing laboratory, Orchid Cellmark, determined that there was over a 99% probability that William Edward was Barbara's biological father. Although Carole and Dennis Jr. moved for a second round of testing with a different company, the appointed company was unable to complete a test.

The Texas Probate Code (and now the Texas Estates Code) adopted a presumption from the Texas Family Code regarding the results of genetic testing. This presumption states that a man is identified as the father if the results demonstrate that the man has at least a 99% probability of paternity and a combined paternity index of at least 100 to 1. Tex. Fam. Code. § 160.505(a)(1-2). This presumption may be rebutted only by producing other genetic testing that excludes the man as the genetic father or that identifies another man as the possible father. Tex. Fam. Code. § 160.505(b)(1-2).

On appeal, Carole and Dennis Jr. challenged the retroactive application of the Probate and Family Code provisions addressing genetic testing. While it is true that statutes are typically presumed to operate prospectively and not retroactively, the enabling statute of the relevant Probate Code sections provided that the provisions were to apply to all proceedings to declare heirship that were pending or filed after September 1, 2007. Because Barbara's application was pending on that date, the appellate court held that there was no error in the trial court applying those provisions.

In addition to the results of the genetic testing, Barbara also presented witness testimony and probative exhibits at the bench trial. For example, Barbara provided a note regarding child support that William Edward was paying to her mother, Norma Jean. William Edward and Norma Jean were married for less than a year, but there was some evidence provided-including statements from William Edward in his original petition for divorce-that Norma Jean was pregnant at the time they divorced.

Carole and Dennis Jr. also argued on appeal that, under the statutory provisions at appropriate time, Barbara could not be deemed his heir. The appellate court found that statutes in force at the time of death generally govern the disposition of a decedent's estate. Thus, the appellate court relied on the text of § 42 of the Texas Probate Code as it existed at the time of Ruby Greer Wallace's death. The relevant part stated:

Paternal Inheritance. For the purpose of inheritance, a child is the legitimate child of his father if the child is born or conceived before or during the marriage of his father and mother . . . so that he and his issue shall inherit from his father and from his paternal kindred, . . . in all degrees, and they may inherit from him and his issue. A person claiming to be an illegitimate child . . . may petition the probate court for a determination of right of inheritance. If the court finds by clear and convincing evidence that the purported father was the father of the child, the child is legitimate for purpose of inheritance. . . .

Since the evidence Barbara presented to the trial court indicated that Norma Jean was pregnant at some point during the time she was married to William Edward, under the language of the statute, she is William Edward's legitimate child. Also, under the statute, she is entitled to inherit from him.

The appellate court goes even further and states that even if she was not conceived during the marriage of her father and mother, she still established her paternity inheritance rights by clear and convincing evidence. The genetic testing results alongside the testimony and evidence she put on at trial were enough to show that she was entitled to inherit.

Super Lawyers Rising Star American Bar Association Defending Liberty Pursuing Justice State Bar of Texas Pro Bono College Super Lawyers New York State Bar Association Houston Bar Association Austin Bar Association American Center for Law and Justice Law Firm 500 10.0Tony Ray Bertolino

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